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A decision from the Upper Tribunal in an appeal against a remediation order made by the First-tier Tribunal under the Building Safety Act 2022.

On 14 June 2017, Grenfell Tower in London was engulfed in flames and 72 residents lost their lives. The main reason for the tragedy was the use of unsafe cladding on the outside of the building. Investigations led to the discovery that many high-rise residential buildings across the UK were subject to serious safety defects. The Government encouraged developers to carry out any necessary remedial work for safety defects discovered and this was reinforced by the imposition of legal liabilities on developers by the Building Safety Act 2022 (“BSA”). It is against that background that the dispute between developers and design engineers, that this appeal is concerned with, has arisen.

Facts The claimant (BNP) engaged the defendant (B&F) to design and construct stair pressurisation works in a 30-storey office tower. These works would include removing the existing system and installing an improved system. The contract was an amended 2016 JCT Design and Build contract. Works were complicated due to the presence of asbestos in the building. An issue arose between the parties as to the extent of the asbestos removal works, and whether B&F was obligated to carry out additional surveys and the asbestos removal works  that were subsequently required, as well as additional structural works that had not initially been foreseen as part of its original scope of work. When further asbestos was discovered, the works were halted, and B&F issued a suspension and then termination notice. BNP treated this as repudiatory breach and sought declarations that B&F was not entitled to serve either the suspension or termination notices, and that in doing so, they had breached the contract. In a previous reported judgment, following trial the court granted both declarations, finding that B&F had no right to terminate the contract, and that B&F had full…